Tag: trademark

The Debt We All Owe to Emulation

Emulation is a broad topic within computer science. This article is specifically about emulation of video games.  There are many other purposes to which emulation may be applied as well, and it’s important not to lose sight of that.  Emulation is a general purpose tool, not merely a tool for piracy.

Old video games have become valuable to collectors in recent years. My generation grew up with video games, and much as the previous generation valued comic books and baseball cards from their youth to the point where they became worth serious money in the 1980s and 1990s, antique videogames have similarly grown in value.

It wasn’t always thus. For a good couple of decades, old videogames were considered obsolete junk. No one wanted them (except maybe a few very geeky people such as myself.) Mostly when a new system hit the market, people forgot about the old generation and within a year or two they weren’t available in the retail channel anymore, or were perhaps on clearance in dollar bins.

Importantly, the manufacturers didn’t continue to manufacture old generation hardware.  Although it became cheaper and cheaper to do so, there still wasn’t enough demand in old systems to keep them viable in the face of new competition. More to the point, manufacturers would have been competing against themselves.  And when trying to recoup the cost of major R&D budgets that produced that next generation, they wanted (and needed) the market to be focused exclusively on that new system. Keeping the old generation system alive would have cannibalized sales, and hurt profitability, and this would have stalled the progress of innovation.

We saw this with Atari. The 2600 was the system that broke through into nearly half of American households in the late 70’s and early 80’s. At the time, it wasn’t obvious to the general public that there was going to be a new generation every several years as Moore’s Law continued to work its magic to enable cheaper, more powerful computing technology.  Internally, Atari struggled with releasing their next generation system, the 5200. With tens of millions of 2600 consoles already in homes, the revenue stream represented by cartridge sales for the established console was too important for Atari to walk away from it. The 5200 wasn’t backward compatible (although an adapter for 2600 games existed) and Atari felt that the average consumer might feel alienated and abandoned if they had to go out and buy a new, expensive console.  As a result, Atari kept the 2600 alive an incredible 15 years, finally stopping production in 1992.  The 5200, launched in 1982, was hampered by a variety of factors, and never had the same level of success — it was expensive, lacked backwards-compatibility, the library was mostly the same titles as were available on the 2600, only with better graphics, the controllers were delicate analog joysticks that annoyingly didn’t automatically re-center, it contended in the market with rivals Coleco and Mattel, and then the 1983 crash of the North American market cut short its heyday.

The business data was always very clear on this. With video games, what was hot today was gone a few weeks or months later, or in the case of smash hits, maybe a year. New product constantly distracted and replaced old product, with a few notable exceptions such as Pac Man and Donkey Kong, most video games didn’t have staying power in the market.

Obviously, that’s not to say that old games started sucking and were no longer fun to play. They didn’t. But their enduring appeal didn’t translate into sustainable marketability.  And that’s why successful games spawn franchises of endless sequels and a multiverse of linked-IP titles. And the old constantly gave way to the new. And the business always wanted the market to be focused on the new, because that’s where sales were.  (But yet, in other market segments, they keep making chess sets, decks of cards, balls, copies of popular board games that have been enjoyed for generations, such as Monopoly, etc.) For some reason, the prevailing wisdom was you couldn’t sell a videogame that everyone had already bought.

Well, until recently. A little over a decade ago, Nintendo introduced the Virtual Console on Wii, and started selling us games that they had made in the 1980s and 1990s.  And we bought them. In many cases, we bought them again. For some, it may have been the first time.

Even that wasn’t a completely new thing.  Every console has had classic games ported to it.  Atari has continually re-packaged its greatest hits into collections that have been sold on just about every console and platform that has been released since the original system exited the market. Virtually every big game developer has done it as well: Activision, Sega, SNK, Midway, Namco, and on and on.

And what made that possible?

Emulation.

Without emulation, putting an old game on a new system would have meant porting it, essentially re-writing the game from scratch. And ports were never capable of being entirely faithful to the original. There’s always differences, often substantial, to the point that the nostalgic value of a port is never quite there.  It’s not like playing the original.  You can never go home again.

But with emulation,  you could. Emulators were magic. With an emulator, a new machine could be made to work nearly exactly like some older machine with a completely different architecture, and run software for that older machine without further modification, and the results would be virtually indistinguishable from that software running on original hardware.  

The old systems may burn  out and break down.  The factory could stop making them and shift production to other, more profitable, more in demand product lines. But as long as someone could write an emulator to work on modern machines, old games could live, in theory forever.

Game companies, mostly, did not want that. Especially if there wasn’t some way to make money from it. And once full retail priced sales for a game, or generation of games, stopped being feasible, game companies dropped the product line entirely. Their expectation as the buying public would follow on to the next new thing, and that’s where the industry wanted all focus.  

So game emulation, in its earliest incarnation, was an unauthorized, underground enterprise, a labor of love by gamers desperate to keep the games they loved from disappearing entirely, as they surely would have without their efforts.

And what good is an emulator without something to run on it? This is where ROM dumps come into play. Anyone can tell you that emulation isn’t illegal, doesn’t violate any copyright or patent or trademark law. But ROMs, those are a different story. Copyright law is clear enough about making unauthorized copies of copyrighted works for distribution and especially for profit. There are limited provisions for making copies of works for personal use, of a copyrighted work which you own a copy of, for archival/backup purposes, for academic purposes, for criticism and review purposes, for time shifting and platform shifting, and so on.

Archival/backup purposes fit the context of ROM dumping best, but even so, technically this is a personal use right, meaning that in theory (to my knowledge this has not been tested in the courts) a person could legally dump the ROM of a game that they personally own, for use as a backup, and use an emulator for platform shifting that work onto a new platform.  But that’s a personal copy — they still don’t have any right to distribute that.  And even if my copy of Super Mario Bros. 2 is exactly the same as the copy that someone else already dumped for their own personal use, I can’t (legally) take a shortcut and make a copy of their dump; I have to produce my own.  Which takes time, effort, equipment, expertise, and the vast majority of people do not have that, nor do they have the inclination. So people did the only reasonable thing there was to do: they shared copies of existing ROM dumps. And yes, this meant that many people obtained copies of ROMs that they didn’t own an original copy of. And this was copyright violation.

And yet, for a long time, there still wasn’t enough value in emulation for the rightful intellectual property rights holder to have incentive to do anything about this situation.  And so, as a result, the Abadonware movement began, and the underground emulation scene grew and grew and grew.

You can go to a bookstore today and buy a new copy of a book written hundreds of years ago.  At least, certain ones.  You can’t go to a retail store and buy a new copy of a video game produced 40 years ago.  Not most of them. Sure, today there’s now a few exceptions, if you want to count systems like the Atari Flashback or NES Classic.

But — these systems only cover a small fraction of the catalog of titles that were released for those systems.

And — those systems are only possible because of emulation.  They’re dedicated emulation boxes. That’s right.

For $60, you can buy a tiny selection of really great games, and through the magic of emulation, play them on a modern HDTV. Much of the work that made that possible was pioneered, for free, by enthusiasts and hobbyists who made it their mission to preserve the past and ensure that some game that they loved would be available forever.  For free.

And more than just preserving the popular hits of yesterday, the emulation scene also provided equal attention to games that virtually no one had played, and even fewer people care about, or even knew about.  Rare games that hadn’t performed well on retail release, but were nonetheless good games, have gotten a second wind and rebirth, in large part because someone in the emulation scene ripped a copy of it, and distributed it for free so that thousands of people could experience it.  Games like Little Samson, a NES rarity that sells for thousands of dollars for an authentic copy, could not be experienced by the vast majority of people, without a ROM dump and an emulator.  And probably the black market distribution of this ROM is what helped make people aware of it, to create the demand that gave rise to the premium price that the original now commands.

Companies like Nintendo didn’t want you to play their old games, at one time, for a long time.  But now that the emulation scene proved that those games did have lasting appeal and historic value, now Nintendo would like to sell you those games again. And because they can, they seek to destroy the underground movement that showed it was viable and created the technology that made it possible.

I find this incredibly sad, aggravating, and tragic. I may have a personal collection of physical cartridges in my gaming library, but I certainly couldn’t replace them at today’s prices if they were lost.  And that hardware’s not going to last forever.

Copyright used to have a limited term, and this would have made things a lot easier for the emulation movement to happen in a completely legal way. But over the years, large companies have continually altered intellectual property laws — always to their benefit, never for the public good — to secure a perpetual right to works, robbing the public domain of a rich future. 

Robbing the public.

Robbing all of  us.

Review: No Mario’s Sky/DMCA’s Sky

In my last post, I talked about the recent copyright and trademark infringement takedown actions initiated by Nintendo against No Mario’s Sky and various other games hosted on GameJolt.

Here’s a review of No Mario’s Sky/DMCA’s Sky.

No Mario’s Sky was made in a weekend for Ludum Dare 36. It is a mashup of Hello Games’ No Man’s Sky and Nintendo’s Super Mario Bros. The theme for Ludum Dare 36 was Ancient Technologies. It’s unclear how this game relates to the theme. However, due to the popularity and familiarity of Mario and No Man’s Sky, the game got quite a lot of attention in very little time, and was picked up by websites such as Kotaku and Polygon.

The premise of the game is that Mario is looking for the Princess on an infinite series of procedurally generated 2D Mario worlds. The worlds wrap around a circle, giving them the appearance of planetoids.

Once you’ve satisfied your curiosity on one world, you can summon your spaceship and take off in search of another world. Apart from the color scheme of each world, there’s not all that much to differentiate them, which may be due to the game being developed in just 72 hours, or may be a deliberate commentary on the procedurally generated sameness that many players of No Man’s Sky have complained about.

No Mario's Sky

From a Mario standpoint, the game only borrows the titular character, the goomba enemy, and the basic concept of jumping on platforms and enemies, collecting coins, and hitting platforms from below. No sprite artwork is taken from Nintendo’s games, as all sprites and tiles appear to have been re-created by the ASMB development team, and while the Mario and Goomba characters are recognizable, they are not in any way confusable with Nintendo art assets. There is no brick breaking, no super mario mushroom, no star man, no fire flower. Again, this is likely due to the compressed schedule under which the game was created. Each world plays its own variant of the Super Mario Bros theme music, which is again a re-done composition, not the original music ripped from the Nintendo game.

In short, from a copyright infringement standpoint, this game is in a gray area, but pretty safe, in that nothing is actually copied directly from the Nintendo games. This game is about as much a Mario ripoff as KC Munchkin was a Pac Man ripoff. (Atari successfully sued Philips to stop the sale of K.C. Munchkin, even though the game was not Pac Man, but the case was bullshit and probably would not have succeeded were similar suit brought today.)

From a trademark infringement standpoint, of course, the game clearly is using the identity and behavior of the famed Nintendo mascot, without authorization or permission of Nintendo. If this were a commercial product, it would certainly be liable for trademark infringement. However, this is probably closer to a parody, or a “fan game” or homage. Unfortunately, the latter two concepts don’t exist as legal categories. It might be that the creators could have successfully defended the game as a parody, but that would have involved going to court and rolling the dice to find out whether they could persuade a judge of that. There’s simply no way an independent developer has the time or resources to try to defend what amounts to a weekend’s worth of work against a company the size of Nintendo for what would surely be months or years of litigation.

If ASMB had avoided use of the Mario name, perhaps renaming him something recognizable, like “Mustachhio”, say, and if the music had been done in a way that was recognizably Mario-eque without having the exact same melody, probably Nintendo would not have had any copyright leg to stand on, and the game could have remained as-is. From a trademark standpoint, though, it probably does run afoul of Nintendo’s trademark on the Mario Bros. franchise, given that it uses the Mario and Goomba names and likenesses.

While the game is fairly bland as-is, the concept is certainly fun and held promise. Were the game to be developed further, to better incorporate the Mario characters and play mechanics, it could have been a very enjoyable game.

DMCA’s Sky removes the Mario and Goomba artwork, replacing them with a generic space man and alien, and the music has also been replaced, but otherwise the game is much the same. Interestingly, the jump, coin and 1-up pickup sounds remain recognizably Mario-esque, but again do not appear to be direct rips from original sources.

DMCA's Sky

I suppose Hello Games could also make an IP infringement claim if they wanted to, and force the game to remove the procedurally generated planet hopping, at which point the game wouldn’t have much left in it anymore. Notably, so far at least, they haven’t.

It turns out, though, that when you break down just about any video game into its fundamentals, pretty much every game is based on, or borrows from, concepts that came from some other game. And — this is the important thing that must not be lost sight of — concepts are not subject to copyright. Not even play mechanics are copyrightable. Only actual works are copyrightable.

Of course, copyright is only one branch of Intellectual Property law, and there’s also potentially opportunity for patent and trademark lawsuits to shut down a game that borrows “too much” from a well known existing game.

Despite this, much of the charm of No Mario’s Sky was in its mash-up-ness, and this charm is effectively stripped from it by removing the Mario references. So clearly, the game derives some value from referencing the source material that it is based on. I don’t think that can be denied. I have a harder time seeing how this game harms either Nintendo or Hello, however. It was available for free, not for sale. It isn’t reasonably mistake-able for a real Nintendo game, and if that were a risk it could be prominently disclaimed on the title screen that it was not in any way connected to Nintendo, who retains full ownership of the “real” Mario characters. I see little evidence that the existence of this game or the numerous other Nintendo-IP infringing games done by fans over the years (including ROM hacks, homebrew games, de-makes, and homages) has in any way diminished the Nintendo brand or harmed Nintendo as a business.

The takedown of unauthorized fan games isn’t anything new — it’s just the latest in a string of consistent defenses of Nintendo’s IP rights. It’s clear that Nintendo is aggressive in protecting their IP rights, and have always been. This has been in part due to their corporate culture, but also in larger part due to the nature of IP law.

But IP law isn’t immutable. We could as a culture elect to shape law differently, if we could agree to.

Nintendo’s takedown of videos on youtube and elsewhere, of people playing their games who do not participate in or follow the rules set forth by Nintendo in the “Nintendo Creator’s Program” is ridiculous — it’s not a copyright infringement for me to play a video game, or to talk about a videogame, or to record me talking about a videogame while playing it, and footage of said videogame that I create should legally be my sole creation (while the characters owned by Nintendo and other IP-holders are still retained by those holders).

If I want to make a video of a videogame for purposes of review, criticism, or parody, I shouldn’t have to obtain the permission of the IP rights holders of the videogame, nor should I have to share revenue with them. They earned their revenue already through sale of the game, and did none of the work to produce the video, so why should they be entitled to a share of revenue generated by the video?

Likewise, if I want to make a videogame that references other videogames, much as a work of literature may reference other works of literature, creators should have some right to do so. Exactly how this should work out so that the original creator’s rights are protected and respected isn’t very clear, however.

Ultimately, the power seems to fall to those who have the deepest pockets with which to pay the most and best lawyers. As as a result, the culture, and the game playing public, is poorer for it.

Mario on iOS, Nintendo copyright takedown

Nintendo announced the first (authorized) appearance of Mario on iPhone a few days ago:

There’s much to be made of this.

Ten years ago, while the Wii was selling phenomenally well, there were some wild rumors about Nintendo and Apple teaming up to bring games to the Apple TV device. But, while tantalizing, these rumors never panned out, nor really made sense. While both companies were extremely successful on their own, they didn’t really seem to need each other, or have any reason to cooperate. Nintendo software licensees could have certainly helped put Apple TV in many more homes, but what could Apple have offered Nintendo, who weren’t having any trouble selling the Wii?

Fast forward to 2016, and the successor to the Wii, the Wii U, is widely regarded as a misstep for Nintendo, and now it appears maybe they do need some help. But rather than looking for it in the living room, where they are poised to launch their next-generation NX console in a few months, right now they are going straight for the pocket. Meanwhile, Apple’s huge hit from 2006, the iPhone, has been a juggernaut for much of these last ten years. And here is where Apple and Nintendo can help each other out.

It’s the first time in decades that Nintendo has put software out on a platform that it does not own. This could be seen as a concession that Nintendo is no longer dominant in gaming hardware, or simply an acknowledgment of the vitality of the mobile gaming market. While Nintendo have been hugely dominant in the handheld market since they released the Game Boy in 1989, smartphone and tablet devices have in the last decade created an even bigger market for games. With the massive success of Pokemon Go earlier this year, the writing was on the wall, and Nintendo making this move now only makes sense. In fact, it’s probably overdue.

Entitled Super Mario Run, it appears to be an endless runner type game rather than a typical 2D platformer. Due to the iPhone touch screen being the only controls, and a desire to make the game playable one-handed, this design addresses the constraints imposed by the user interface in about the only way that would work well.

More Nintendo Copyright Takedowns

Nintendo also made headlines this week by issuing takedown notices for a large number of unauthorized games that infringe upon Nintendo-owned trademarks, particularly Mario and Pokemon. It is not surprising at all that this should happen, but still disappointing for people who built or enjoyed those games. While many of these games may have been derivative and inferior games done in homage of, some were parodies or innovative or just fun, well done fan homages.

It’s too bad there doesn’t exist a legal framework in which fan-made games can co-exist peacefully with official releases by commercial studios, but licensing is only a solution if the IP-holder embraces it. Nintendo are within their rights to take these actions to protect their trademark and intellectual property rights, of course, and perhaps it is necessary for them to vigorously defend their trademarks or risk losing them entirely, but it’s nevertheless possible to set up a legal framework by which these unofficial games could be allowed. While it’s entirely ridiculous in my opinion for Nintendo to claim copyright and trademarks on speed run, Let’s Play, and review videos featuring their products, something like the Nintendo Creators Program would make a lot of sense for fan-produced games.

What might such a program look like? I would propose something like the following…

  1. The fangame creator would acknowledge that Nintendo created and owned whatever they owned.
  2. The fangame creator disclaims that Nintendo do not have any responsibility for content the fangame, and that the fangame is not an official Nintendo release.
  3. Any revenue derived from the fangame would need to be disclosed and shared with Nintendo.
  4. The fangame could be nixed by Nintendo (pulled from release) at their sole discretion at any time.

I very much doubt that a company like Nintendo would ever agree to such terms, but it’s too bad. Apart from perhaps Nintendo, everyone is worse off because of it.

The irony of this situation is that Nintendo can copyright and trademark its characters, but not the mechanics or genre of game. (Nor should it.) Someone can invent the infinite runner, and Nintendo can decide to do a Mario infinite runner game, and not owe anything to the inventor of the infinite runner game. So can anyone else. And Nintendo can make a running and jumping platform game, and anyone else can too, duplicating the Mario mechanics and rules system entirely if they should wish to, but simply can’t use the name Mario or the likeness of any of Nintendo’s graphical or audio assets.